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1 2 3 4 5 6 7 8 9                     UNITED STATES DISTRICT COURT10                    EASTERN DISTRICT OF CALIFORNIA11  ...
1   Statement of Facts, and the depositions submitted to the court, 2   the court finds that petitioner has not met his bu...
1   the two petitions, held them in abeyance, and transferred 2   petitioner’s second petition to this court for a determi...
1   United States citizen on February 20, 1974.          (Id. ¶ 4.) 2   Petitioner’s biological father, Henry Gitelman, is...
1   ship and went to New Jersey for a few days to be discharged. 2   (Id.; Resp’t Brief Ex. F. (Jan. 6, 2010 Gitelman Depo...
1   United States on January 10, 1966 to live with Ted Anderson and 2   his mother.    (Id. ¶¶ 36-37.)    Upon arriving in...
1   714 F.2d 72, 74 (9th Cir. 1983).       “There are ‘two sources of 2   citizenship, and two only: birth and naturalizat...
1   years by legitimation.”   Id. § 1409(a).   Accordingly, under the 2   statute, the method by which an out-of-wedlock c...
1   statute.   Petitioner’s biological parents never married. 2   Petitioner argues, however, that his adoption by Ted And...
1        “born . . . of” a citizen parent, obviously reflecting a          relationship when “born.” That reading is likew...
1   for immigration purposes.   Rather, the authority simply indicates 2   that under English and Massachusetts law, an ad...
1   child.    Petitioner’s argument that the statute excludes 2   illegitimate children entirely from citizenship is there...
1   (1952).   The remaining question is whether the paternity of 2   petitioner was established by legitimation before pet...
1   birthday.   See 8 U.S.C. § 1101(c)(1) (1952). 2               1.   Arizona 3               Petitioner primarily stress...
1   in Flores-Torres was born in El Salvador, which, like Arizona, 2   abolished the concept of illegitimacy.      Flores-...
1   692-93 (1950).   Congress recognized that legitimation involved 2   compliance with a legal process and believed that ...
1   before the age of twenty-one without his father taking any 2   affirmative steps to acknowledge a paternal relationshi...
1   highly doubtful that Congress envisioned that a child could 2   receive citizenship by virtue of a blood relationship ...
1   court agrees with the reasoning of Flores-Torres, that to hold 2   that petitioner had his father’s paternity establis...
1   a married couple prior to the commencement of a suit for divorce 2   is legitimate.”)   This presumption is inapplicab...
1   twenty-one years old.    Second, even assuming Gitelman’s affidavit 2   was timely, petitioner was not legitimated und...
1   legitimated under Minnesota law in accordance with former 2   Minnesota Statutes section 517.19 (1976), which provided...
1   legitimated under the pre-1978 version of section 517.19. 2               If the post-1978 version of the statute appl...
1   that he was legitimated under Massachusetts law because the 2   Massachusetts Supreme Court’s holding in Lowell v. Kow...
1   the father of an illegitimate person, that person is heir of his 2   father . . . .”    Id. 3             It is theref...
1   European Convention on Human Rights (“ECHR”) into English law. 2   Article 14 of the ECHR includes language prohibitin...
1   citizenship “at birth” to his adoptive child as a biological 2   father can under § 1409(a).   In Miller, 523 U.S. 420...
1   U.S. citizen to derive citizenship from that parent.”    Martinez- 2   Madera, 559 F.3d at 942 (citation omitted).   T...
1   While “a title alone is not controlling,” I.N.S. v. St. Cyr, 533 2   U.S. 289, 308 (2001), the separate naturalization...
1   the INA’s naturalization provisions, he chose not to do so. 2   Accordingly, petitioner is not a United States citizen...
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Anderson v Holder 4 27-10 citz case later overruled 3-12-12

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Anderson v Holder 4 27-10 citz case later overruled 3-12-12

  1. 1. 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT10 EASTERN DISTRICT OF CALIFORNIA11 ----oo0oo----1213 GARY ANDERSON, NO. CIV. 2:09-2519 WBS JFM14 (Court of Appeals No. 08-73946) Petitioner,15 MEMORANDUM OF DECISION16 v.17 ERIC H. HOLDER JR., Attorney18 General,19 Respondent. /2021 ----oo0oo----2223 Pursuant to 8 U.S.C. § 1252(b)(5)(B), the Ninth Circuit24 Court of Appeals transferred this matter to this court for a25 determination of petitioner Gary Anderson’s claim that he is a26 United States citizen. Petitioner asks for a declaratory27 judgment that he obtained United States citizenship at birth.28 After considering the arguments of counsel, the parties’ Joint 1
  2. 2. 1 Statement of Facts, and the depositions submitted to the court, 2 the court finds that petitioner has not met his burden of 3 establishing that he is a United States citizen and will 4 therefore deny his request for declaratory relief. 5 This memorandum constitutes the court’s findings of 6 fact and conclusions of law pursuant to Federal Rule of Civil 7 Procedure 52(a). Fed. R. Civ. P. 52(a); see 8 U.S.C. § 8 1252(b)(5)(B). 9 I. Procedural History10 On January 3, 1996, petitioner was convicted for11 conspiring to distribute and possess with the intent to12 distribute methamphetamine. The then-existing Immigration and13 Naturalization Service initiated removal proceedings against14 petitioner on September 7, 2000. On January 11, 2001, an15 immigration judge found that petitioner was a United States16 citizen and terminated removal proceedings. The Board of17 Immigration Appeals reversed this decision and ordered petitioner18 removed to England on June 22, 2001. Petitioner filed a petition19 for review with the Ninth Circuit on October 16, 2007, which20 remains pending. See Anderson v. Holder, No. 07-74042.21 On June 26, 2008, petitioner filed a motion to reopen22 the removal proceedings with the Board of Immigration Appeals.23 On August 14, 2008, petitioner filed a second petition with the24 Ninth Circuit, which is also pending, challenging the Board of25 Immigration Appeals’ decision to deny his motion to reopen. See26 Anderson v. Holder, No. 08-73946. The two petitions were27 consolidated on September 16, 2008. See Anderson, No. 07-7404228 at Docket No. 15. On August 17, 2009, the Ninth Circuit severed 2
  3. 3. 1 the two petitions, held them in abeyance, and transferred 2 petitioner’s second petition to this court for a determination of 3 citizenship pursuant to 8 U.S.C. § 1252(b)(5). (Docket No. 1.) 4 At the scheduled Pretrial Conference on February 8, 5 2010, the parties indicated that they were in agreement on many, 6 if not all, of the facts in this matter. The court accordingly 7 afforded the parties an opportunity submit a joint statement of 8 undisputed facts, which the parties filed on March 1, 2010. 9 (Docket No. 19.) The court held another Pretrial Conference on10 March 1, 2010, where petitioner identified one potential disputed11 issue of fact in regard to witness Henry Gitelman’s testimony and12 asked the court for additional time to take another deposition of13 Gitelman so that he could avoid the inconvenience of coming to14 Sacramento to testify. The United States did not oppose this15 request. The court accordingly allowed petitioner to take16 another deposition of Henry Gitelman and submit it as part of the17 record. (Docket No. 20.)18 The court held a hearing on April 26, 2010, to afford19 the parties an opportunity to call witnesses and submit evidence20 not already on the record for any disputed issue of material21 fact. Neither party elected to call any witnesses or submit any22 additional evidence at the hearing.23 II. Findings of Fact24 Petitioner was born on October 1, 1954 in Swindon,25 England. (Joint Statement of Undisputed Material Facts (Docket26 No. 19) ¶ 1.) Petitioner’s mother, Mavis Sinclair, also known by27 her married name as Mavis Anderson, was born in England on28 November 30, 1936. (Id. ¶¶ 2-3.) Sinclair became a naturalized 3
  4. 4. 1 United States citizen on February 20, 1974. (Id. ¶ 4.) 2 Petitioner’s biological father, Henry Gitelman, is a United 3 States citizen born in Malden, Massachusetts on February 28, 4 1932. (Id. ¶¶ 5-6.) Gitelman lived and intended to permanently 5 remain in Malden, Massachusetts. (Id. ¶ 7.) At nineteen, 6 Gitelman joined the United States Air Force and was stationed in 7 England. (Id. ¶ 8.) Gitelman lived in England as a member of 8 the Air Force from 1952 until 1955, when he was honorably 9 discharged. (Id. ¶¶ 9-10).10 Gitelman and Sinclair had a sexual relationship in11 England that resulted in the conception of petitioner. (Id. ¶¶12 11-12.) Gitelman learned that Sinclair was pregnant through her13 parents, who did not approve of Gitelman’s relationship with14 their daughter. (Id. ¶ 17.) Sinclair’s parents would not give15 Gitelman permission to marry Sinclair and their romantic16 relationship ended after Sinclair became pregnant. (Id. ¶ 26.)17 Gitelman was not present at the hospital when Sinclair was in18 labor or during petitioner’s birth. (Id. ¶ 15.) Gitelman19 visited petitioner shortly after his birth, paid for Sinclair’s20 hospital expenses, and purchased a baby stroller, which he gave21 to Sinclair. (Id. ¶ 16.) Gitelman’s name is not listed on22 petitioner’s birth certificate in part because Sinclair’s parents23 would not give the permission required for Gitelman to put his24 name on the certificate. (Id. ¶¶ 23-24.) Neither Gitelman nor25 Sinclair attempted to amend the birth certificate to add Gitelman26 as petitioner’s biological father. (Id. ¶ 23.)27 Gitelman left England and returned to the United States28 in 1955. (Id. ¶ 27.) Gitelman landed in New York on a troop 4
  5. 5. 1 ship and went to New Jersey for a few days to be discharged. 2 (Id.; Resp’t Brief Ex. F. (Jan. 6, 2010 Gitelman Depo.) at 35:23- 3 36:10.) After his discharge from the Air Force, Gitelman 4 returned to Massachusetts where he lived until at least 1975. 5 (Joint Statement of Undisputed Facts ¶ 27.) Gitelman never 6 claimed petitioner on his tax returns, took a blood test to 7 establish that he is petitioner’s biological father, or lived 8 with petitioner. (Id. ¶¶ 18-21.) Gitleman also never provided 9 or agreed in writing to provide financial support for petitioner10 outside of paying for Sinclair’s hospital expenses and purchasing11 a baby stroller. (Id. ¶ 22.)12 Gitelman had no contact with petitioner from the time13 he visited petitioner in the hospital shortly after birth until14 1999 or 2000, when petitioner was forty-five or forty-six years15 old. (Id. ¶ 20.) In 2000, Gitelman signed an affidavit stating16 that he is petitioner’s biological father. (Id. ¶ 28.) In 2001,17 Gitelman also provided telephonic testimony at petitioner’s18 hearing in immigration court that he is petitioner’s biological19 father. (Id.) Gitelman has never denied that he is petitioner’s20 biological father and has told a number of friends over the years21 that he had a son in England. (Id. ¶ 14; Resp’t Brief Ex. A22 (Mar. 25, 2010 Gitelman Depo.) at 5-8, 11-14.)23 Sinclair married Ted Anderson in Detroit, Michigan on24 May 23, 1964. (Joint Statement of Undisputed Facts ¶ 31.) Ted25 Anderson is a United States citizen, born in North Carolina on26 September 4, 1936. (Id. ¶ 29.) Ted Anderson lived in North27 Carolina from his birth until April 6, 1956. (Id. ¶ 30.) When28 petitioner was twelve years old, he moved from England to the 5
  6. 6. 1 United States on January 10, 1966 to live with Ted Anderson and 2 his mother. (Id. ¶¶ 36-37.) Upon arriving in the United States, 3 petitioner began living with Ted Anderson and Sinclair in 4 Pontiac, Michigan. (Id. ¶¶ 38-39.) On March 16, 1967, Ted 5 Anderson adopted petitioner. (Id. ¶ 31.) Gitelman was not 6 notified that petitioner was living in the United States or that 7 Ted Anderson adopted him until Gitelman spoke with Sinclair in 8 2000. (Id. ¶¶ 32-34.) 9 Petitioner lived continuously, and intended to10 permanently remain in, Michigan from January 1966 until 1971 or11 1972, when he moved to Minnesota with Ted Anderson and Sinclair.12 (Id. ¶¶ 39, 41.) Petitioner continuously lived in Minnesota,13 where he intended to permanently remain, until July 1975. (Id. ¶14 41.) He lived with Sinclair and Ted Anderson in Minnesota until15 they moved to Arizona. (Id.) Six to nine months later,16 petitioner also moved to Arizona in July 1975. (Id. ¶¶ 41-2.)17 Petitioner lived with Sinclair and Ted Anderson in Arizona for a18 year, until Sinclair and Anderson moved into their own home while19 petitioner stayed in an apartment on his own. (Id. ¶ 42.)20 Petitioner became a Lawful Permanent Resident of the United21 States on July 1, 1976, when he was twenty-one years old. (Id. ¶22 40.) Petitioner lived in Arizona until 1995, except for the time23 when he was incarcerated for various criminal sentences in24 Arizona and Florida. (Id. ¶ 43.)25 III. Analysis and Conclusions of Law26 In a proceeding under 8 U.S.C. § 1252(b)(5), the27 petitioner bears the burden of proving citizenship by a28 preponderance of the evidence. See Sanchez-Martinez v. I.N.S., 6
  7. 7. 1 714 F.2d 72, 74 (9th Cir. 1983). “There are ‘two sources of 2 citizenship, and two only: birth and naturalization.’” Miller v. 3 Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong 4 Kim Ark, 169 U.S. 649, 702 (1898)). Citizenship at birth can be 5 acquired by being born in the United States. If a person is not 6 born in the United States, he or she can acquire citizenship at 7 birth only as provided by Congress. See id. at 423-24. “‘The 8 applicable law for transmitting citizenship to a child born 9 abroad when one parent is a U.S. citizen is the statute that was10 in effect at the time of the child’s birth.’” Id. at 116211 (citing United States v. Viramontes-Alvarado, 149 F.3d 912, 91512 (9th Cir. 1998)) (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th13 Cir. 1995)) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th14 Cir. 1990)).15 At the time of petitioner’s birth in 1954, former 816 U.S.C. § 1401(a)(7) of the Immigration and Nationality Act of17 1952 (“INA”) conferred United States citizenship at birth to:18 a person born outside of the geographical limits of the United States and its outlying possessions of parents one19 of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was20 physically present in the United States or its outlying possessions for a period or periods totaling not less21 than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any22 periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in23 computing the physical presence requirements of this paragraph.2425 8 U.S.C. § 1401(a)(7) (June 27, 1952). Section 1409(a) of the26 INA provided that § 1401(a)(7) could provide citizenship to27 children born out-of-wedlock only “if the paternity of such child28 is established while such child is under the age of twenty-one 7
  8. 8. 1 years by legitimation.” Id. § 1409(a). Accordingly, under the 2 statute, the method by which an out-of-wedlock child can 3 establish his paternity is through being legitimated. 4 In addition, § 1101(c)(1) provided that the term 5 “child” meant: 6 an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s 7 residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or 8 elsewhere, and, except as otherwise provided in sections 1431-1434 of this title, a child adopted in the United 9 States, if such legitimation or adoption takes-place before the child reaches the age of sixteen years, and10 the child is in the legal custody of the legitimating or adopting parent or parents at the time of such11 legitimation or adoption.12 Id. § 1101(c)(1). Former § 1101(c)(1) therefore established that13 a court must look to the law of the U.S. state or country of the14 child and father’s residence to determine if a child was15 legitimated. See Solis-Espinoza v. Gonzales, 402 F.3d 1090,16 1093-94 (9th Cir. 2005); Scales v. I.N.S., 232 F.3d 1159, 116317 (9th Cir. 2000). Thus, for an out-of-wedlock child to obtain18 citizenship, he or she must prove that he or she was legitimated19 under the law of a U.S. state or country of his or her father’s20 residence before the age of twenty-one. See Burgess v. Meese,21 802 F.2d 338, 340 (9th Cir. 1986).22 A. “Born Out-of-Wedlock”23 Petitioner claims that he can establish citizenship at24 birth through both his biological father, Gitelman, and his25 adoptive father, Ted Anderson. Before addressing these specific26 contentions, the court must first determine whether petitioner27 should be considered “born out-of-wedlock” for purposes of the28 8
  9. 9. 1 statute. Petitioner’s biological parents never married. 2 Petitioner argues, however, that his adoption by Ted Anderson at 3 age twelve legitimated him and entitles him to all the rights and 4 privileges of being born in wedlock and that accordingly he 5 should be treated as having been born in wedlock from birth under 6 § 1407(a)(7). 7 In Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 8 2009), the Ninth Circuit addressed a theory very similar to that 9 advanced by petitioner. The Martinez-Madera court specifically10 rejected the argument that “an alien parent who is unmarried at11 the time of the birth of a person who later claims citizenship12 may be deemed to have been married to a citizen at the time of13 birth.” Martinez-Madera, 559 F.3d at 942. Instead, the Ninth14 Circuit followed the Fifth Circuit’s ruling in Marquez-Marquez v.15 Gonzalez, 455 F.3d 548 (5th Cir. 2006), finding the theory that a16 child “can derive citizenship ‘by birth’ from a subsequent U.S.17 citizen stepfather . . . [is] an untenable and paradoxical18 reading of § 1401’s requirement that one be born in wedlock to a19 U.S. citizen to derive citizenship from that parent.” Martinez-20 Madera, 559 F.3d at 942 (emphasis added). As explained by the21 court in Marquez-Marquez:22 [Section 1401] does not address citizenship through adoption, and its text explicitly addresses only23 citizenship “at birth” (“[t]he following shall be nationals and citizens of the United States at birth”).24 Moreover, [§ 1401(g)]1 requires that the “person” be2526 1 Under the 1986 amendments to the INA, § 1401(a)(7) became § 1401(g). See 8 U.S.C. § 1401(g)(1986). Although27 Marquez-Marquez and Martinez-Madera were both interpreting the 1986 version of § 1401, “[t]he text of 8 U.S.C. §§ 1401 and 140928 was not amended in any relevant way between 1952 and 1986” that 9
  10. 10. 1 “born . . . of” a citizen parent, obviously reflecting a relationship when “born.” That reading is likewise 2 enhanced by [§ 1401(g)’s] express requirement that the citizen parent’s United States residency prerequisites be 3 all fulfilled “prior to the birth of such person,” a requirement that would be pointless if the citizen parent 4 could first become the parent of such person more than a decade after the person’s birth. 5 Marquez-Marquez, 455 F.3d at 556-57. 6 Petitioner argues that the Ninth Circuit’s decision in 7 Solis-Espionza supports his contention that petitioner can be 8 considered born in wedlock due to his subsequent adoption. 9 Solis-Espionza is easily distinguishable. In Solis-Espinoza, the10 petitioner’s biological father was married to a citizen11 stepmother at the time of the child’s birth. Solis-Espinoza, 40112 F.3d at 1091-92. The Ninth Circuit found that the person13 claiming citizenship was a legitimate child born “in wedlock”14 because his parents were married at the time of her birth, even15 though his father’s wife was not his biological mother. See id.16 at 1093-94. Here, like the petitioners in Martinez-Madera and17 Marquez-Marquez, petitioner was not born into any marital18 relationship. See Martinez-Madera, 559 F.3d at 94119 (distinguishing Solis-Espinoza and Scales because both involved20 children born into a marriage). Accordingly, Solis-Espinoza is21 not controlling.22 Petitioner’s position conflates legitimacy with the23 state of being born in wedlock. None of the authority under24 English or Massachusetts law cited by petitioner stands for the25 proposition that an adopted child is considered born in wedlock2627 would change the outcome in this case. Martinez-Madera, 559 F.3d28 at 941 n.1. 10
  11. 11. 1 for immigration purposes. Rather, the authority simply indicates 2 that under English and Massachusetts law, an adopted child is 3 treated as though he or she was legitimate at birth. See, e.g., 4 Minor Child v. Mich. State Health Comm’r, 16 Mich. App. 128 5 (1969); Adoption Act, 1926, 16 & 17 Geo. 5, c. 20, § 5 (Eng.). 6 Being born “out-of-wedlock” is a factual condition distinct from 7 the legal state of being considered “illegitimate.” See Lau v. 8 Kiley, 562 F.2d 543, 548 (2d Cir. 1977) (“Legitimacy is a legal 9 concept. The law makes a child legitimate or illegitimate . . .10 Indeed the term ‘illegitimate’ means ‘(t)hat which is contrary to11 law(.)’” (internal citation omitted)). While legitimacy may be12 retroactive to a child’s birth, it is clear the Ninth Circuit has13 held that a child cannot be considered retroactively “born in14 wedlock” because of a subsequent adoption and marriage by one of15 the child’s parents. See id. at 941-42.16 Under this interpretation of § 1409 it would not be17 impossible for a child born out-of-wedlock to gain citizenship18 unless his parents subsequently married under the statute. A19 child born out-of-wedlock initially could be subsequently20 legitimated before his or her twenty-first birthday and obtain21 all the rights of citizenship. See 8 U.S.C. § 1409(a). As22 previously explained, § 1101(c)(1) of the INA mandates that a23 court must look to the law of the residence of the child or24 father to determine if a child was legitimated. See Solis-25 Espinoza, 402 F.3d at 1093-94; Scales, 232 F.3d at 1163. The26 variety of legitimation requirements across domiciles ensures27 that it will not always be necessary for a child’s biological28 parents to marry to confer citizenship on an out-of-wedlock 11
  12. 12. 1 child. Petitioner’s argument that the statute excludes 2 illegitimate children entirely from citizenship is therefore 3 clearly false. 4 The Supreme Court has held that “§ 1409(a) is 5 consistent with the constitutional guarantee of equal 6 protection.” Nguyen v. I.N.S., 533 U.S. 53, 58-59 (2001). 7 Although the Supreme Court was ruling on the contemporary version 8 of § 1409(a), the current version of the statute arguably creates 9 a higher hurdle for illegitimate children to obtain citizenship10 because in addition to establishing legitimacy, paternity in a11 competent court, or an acknowledgment of paternity in writing,12 the child must establish that a (1) blood relationship exists13 with the father, (2) the father was a national at the child’s14 birth and (3) the father agreed to provide financial support in15 writing. 8 U.S.C. § 1409(a) (1986). It is not the place of this16 court to disturb the rulings of the Ninth Circuit and the Supreme17 Court on a limited hearing to determine whether petitioner is a18 United States citizen. Accordingly, since petitioner was born19 out-of-wedlock, he must meet the requirements of § 1409(a) to be20 a United States citizen.21 B. Citizenship Through Gitelman22 Petitioner argues that he acquired citizenship at birth23 through Gitelman. It is undisputed that petitioner has fulfilled24 the requirements of § 1401(a)(7), since Gitelman was born a25 United States citizen and fulfilled the physical presence26 requirements by living in Massachusetts from his birth until he27 left to serve in the Air Force and then returning to live in28 Massachusetts after his service. See 8 U.S.C. § 1401(a)(7) 12
  13. 13. 1 (1952). The remaining question is whether the paternity of 2 petitioner was established by legitimation before petitioner 3 turned twenty-one years old. See id. § 1409. 4 Legitimacy is a legal concept, and a state has the 5 power to define what constitutes it, how to regulate it, or even 6 to abolish it altogether. Lau, 563 F.2d at 549. Because states 7 have the power to determine what constitutes legitimacy under 8 former § 1101(c)(1), a person who is legitimated under the law of 9 one state does not become illegitimate under § 1409 if the child10 moves to another state with a different definition of legitimacy.11 See Lau, 563 F.2d at 551; see also Solis-Espinoza, 402 F.3d at12 1093-94; Scales, 232 F.3d at 1163; O’Donovan-Conlin v. U.S.13 Dep’t. of State, 255 F. Supp. 2d 1075, 1082 (N.D. Cal. 2003). It14 is undisputed that petitioner was a resident of England and the15 states of Michigan, Minnesota, and Arizona before the age of16 twenty-one. Gitelman was a resident of Massachusetts before17 petitioner turned twenty-one.2 Accordingly, petitioner is a18 United States citizen if he established his paternity by19 legitimation under the laws of either Arizona, Michigan,20 Minnesota, England, or Massachusetts before his twenty-first2122 2 While petitioner claims that Gitelman was also a resident of New Jersey, Gitelman only briefly stopped in New23 Jersey for “a few days” at Camp Kilmer waiting to be discharged from the Air Force. (See Jan. 6, 2010 Gitelman Depo. at 35:23-24 36:10.) Such a brief, temporary stay in New Jersey at a military base is insufficient to establish New Jersey as Gitelman’s25 domicile or residence. See 8 U.S.C. § 1101(a)(33) (defining “residence” as “principal actual dwelling place”); Charles Alan26 Wright, Arthur R. Miller. & Edward H. Cooper, 13 E Federal Practice and Procedure § 3617 at 567 (3d ed.) (“Service personnel27 are presumed not to acquire a new domicile when they are stationed in a place pursuant to orders; they retain the domicile28 they had at the time of entry into the service.”). 13
  14. 14. 1 birthday. See 8 U.S.C. § 1101(c)(1) (1952). 2 1. Arizona 3 Petitioner primarily stresses that he has established 4 paternity by legitimation under the laws of Arizona. (See 5 Pet’r’s Reply at 5-14.) Petitioner moved to Arizona in July 6 1975, three months before his twenty-first birthday, and remained 7 a there until 1995. The United States does not dispute that 8 petitioner was a resident of Arizona before his twenty-first 9 birthday. Beginning in 1921, Arizona state law has provided10 that, “[e]very child is . . . the legitimate child of its natural11 parents and as such is entitled to support and education to the12 same extent as if it had been born in lawful wedlock.” 192113 Ariz. Sess. Laws Ch. 114; see In re Silva’s Estate, 32 Ariz. 573,14 575-76 (1927); Moreno v. Sup. Court of Pima County, 3 Ariz. App.15 361, 363 (1966). In 1975, Arizona law specifically stated that16 every child is the legitimate child of its natural parents. See17 Ariz. Rev. Stat. § 8-601, amended by Laws 1975, Ch. 117 § 2.18 Petitioner claims that because Gitelman has admitted that he is19 petitioner’s biological father he is legitimate under the law of20 Arizona and therefore Gitelman established his paternity by21 legitimation.22 In Flores-Torres v. Holder, Nos. C 08-01037 WHA, C23 09-03569 WHA, --- F. Supp. 2d ----, 2009 WL 5511156 (N.D. Cal.24 Dec. 23, 2009), the District Court for the Northern District of25 California addressed the meaning of the term “paternity by26 legitimation” under former § 1432(a), a statute dealing with27 naturalization of a child born outside the United States. The28 facts are almost identical to those in this case. The petitioner 14
  15. 15. 1 in Flores-Torres was born in El Salvador, which, like Arizona, 2 abolished the concept of illegitimacy. Flores-Torres, 2009 WL 3 5511156, at *6. The Flores-Torres court concluded that the 4 phrase “paternity . . . by legitimation” in § 1432(a) meant that 5 the only means by which paternity could be established was 6 through the act of legitimation. Id. The court emphasized the 7 word “by” in the phrase and concluded that the petitioner could 8 not show that his paternity was established by legitimation 9 because even though his parents demonstrated paternity by other10 means, they did not engage in an affirmative act of legitimation11 since El Salvador lacked such a procedure all together. See id.12 at *5-6.13 Petitioner’s argument, like the petitioner’s claim in14 Flores-Torres, ignores the distinction between “legitimation” and15 “legitimacy” in general. “Legitimation” denotes a procedure--an16 act or occurrence that makes a child born out-of-wedlock17 legitimate under the law. A “legitimate” child, on the other18 hand, could be either a child born into wedlock or a child born19 out-of-wedlock who has been legitimated or whom the law deems to20 be legitamate. See id. at *6 (noting “the distinction between21 whether a child was legitimated in general and whether a child’s22 paternity was established by legitimation” (emphasis in23 original)). In fact, a Senate report from 1950 discussing the24 phrase “paternity by legitimation” stated that “establishment of25 legitimation is a matter of complying with the laws of the place26 of legitimation . . . [a]s a general proposition, legitimation is27 accomplished by the marriage of the parents with acknowledgment28 of paternity by the putative father.” Sen. Rep. No. 1515, at 15
  16. 16. 1 692-93 (1950). Congress recognized that legitimation involved 2 compliance with a legal process and believed that a step as 3 strong as marriage of a child’s biological parents would be 4 necessary to accomplish it. It is therefore clear that 5 Congress’s intent was to require the child’s parents to go 6 through some process to acknowledge paternity in order to 7 transfer citizenship to their child. 8 This distinction is important because it goes directly 9 to one of the purposes of § 1409--to deter fraud. In requiring10 that a petitioner’s father establish paternity by legitimation,11 Congress was expressing the belief that it was “preferable to12 require some formal legal act to establish paternity . . . to13 deter fraud.” Miller, 523 U.S. at 437 (emphasis added). The14 statute requires the additional affirmative step of legitimation15 to ensure that the state establishes a real, lasting, and legal16 link between parent and child before granting citizenship on the17 basis of that biological relationship. If something at least18 akin to a formal legal act of legitimation is not required, the19 government can not ensure that a true connection exists between a20 putative parent and child born out-of-wedlock that entitles that21 child to citizenship. Otherwise, a person could simply provide22 an affidavit, written decades after his or her birth, stating23 that he or she is the biological child of a United States citizen24 and demand citizenship. Such a system would be rife with25 opportunities for fraud.26 It would be a strange result contrary to the intent of27 Congress for petitioner to obtain United States citizenship by28 birth simply because he was fortunate enough to move to Arizona 16
  17. 17. 1 before the age of twenty-one without his father taking any 2 affirmative steps to acknowledge a paternal relationship with 3 him. Arizona’s legitimacy statute appears to have been meant to 4 establish “the duty of natural parents to support their 5 children.” See In re Silva’s Estate, 32 Ariz. at 577-78 (“[T]he 6 legislative intent was to . . . require the father to support and 7 educate and give a home to, or otherwise provide for, his 8 children born out of wedlock, who, by reason of their tender 9 years, need such care . . . .”); Moreno, 3 Ariz. App. At 363.10 The statute affords all children rights, but does not create a11 procedure for establishing paternity by legitimation. Under12 Arizona law, being legitimate does not establish a paternal link13 between a child and a particular parent. Instead of linking14 legitimation to a legal establishment of paternity, as envisioned15 by Congress, Arizona law declares all children legitimate and16 makes a determination of paternity of a child a separate inquiry.17 Even though petitioner was legitimate under Arizona18 law, Gitelman took no steps to establish his paternity, by19 legitimation or otherwise, before petitioner’s twenty-first20 birthday. Petitioner argues that Gitelman established his21 paternity because he did not deny that he was petitioner’s father22 before petitioner was twenty-one years old. Gitelman did not23 attempt to establish his paternity or formally acknowledge it in24 any fashion until petitioner was at risk of deportation in 200025 and Sinclair asked for his help in petitioner’s deportation26 proceedings. Gitelman’s failure to deny paternity and occasional27 references to friends that he had a son in England are not the28 same as legally establishing his paternity of petitioner. It is 17
  18. 18. 1 highly doubtful that Congress envisioned that a child could 2 receive citizenship by virtue of a blood relationship with a 3 father that had no contact with his child and who was not even 4 aware that his child was in the United States. Petitioner is not 5 a citizen by virtue of his Arizona residency because his 6 paternity was not established by legitimation. Gitelman did not 7 go through any procedure, let alone legitimation as required by § 8 1409(a), to establish his paternity before petitioner’s twenty- 9 first birthday.10 In support of his position, petitioner urges the court11 to follow two cases, O’Donovan-Conlin and Lau. However, these12 cases are distinguishable, because neither interpreted the phrase13 “paternity by legitimation” and instead found that a child was14 “legitimate” for immigration purposes under the law of a state15 that had abolished legitimacy. See O’Donovan-Conlin, 255 F.16 Supp. 2d at 1082 (finding that the child was legitimate under the17 law of Arizona for immigration purposes by virtue of his18 biological tie); Lau, 563 F.3d at 551 (holding that because19 Chinese law makes all children legitimate the petitioner was a20 “legitimate child” for purposes of 8 U.S.C. § 1101(b)(1)3). The2122 3 8 U.S.C. § 1101(b)(1) defines a child for the purposes of Chapters I and II of the INA as:23 an unmarried person under twenty-one years of age who is-24 (A) a legitimate child; or . . .25 (C) a child legitimated under the law of the childs26 residence or domicile, or under the law of the fathers residence or domicile, whether in or outside the United27 States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the28 legal custody of the legitimating parent or parents at 18
  19. 19. 1 court agrees with the reasoning of Flores-Torres, that to hold 2 that petitioner had his father’s paternity established by 3 legitimation when he took no affirmative legal steps to connect 4 himself to his child in any manner would read the words “by 5 legitimation” out of the statute. This is contrary to the plain 6 language of the statute and Congress’s intent to avoid fraud. 7 Accordingly, petitioner does not meet the requirements of § 8 1409(a) under Arizona law. 9 2. Michigan10 Petitioner was at one time a resident of Michigan.11 Petitioner argues that Gitelman’s paternity was established by12 legitimation because under Michigan law (1) a presumption of13 paternity exists until rebutted by the father; (2) a father can14 legitimate a child by acknowledging paternity in writing; and (3)15 discrimination against illegitimate children is prohibited. The16 presumption of paternity petitioner identifies appears in section17 29 of Michigan’s Divorce Act, Mich. Comp. Laws § 552.29. Section18 29 states that “[t]he legitimacy of all children begotten before19 the commencement of any action under this act shall be presumed20 until the contrary be shown.” Mich. Comp. Laws § 552.29. The21 Divorce Act therefore provides for a presumption of legitimacy22 for children born into a marriage in a divorce action. See23 Shepherd v. Shepherd, 81 Mich. App. 465, 469 (1978) (“By statute24 and case law, it is presumed that any child conceived or born to25 the time of such legitimation[.]26 The difference in the statue between a “legitimate child” under27 subsection (A) and a “child legitimated” through legitimation in subsection (B) further reinforces the notion that there is a28 distinction between “legitimacy” and “legitimation.” 19
  20. 20. 1 a married couple prior to the commencement of a suit for divorce 2 is legitimate.”) This presumption is inapplicable to petitioner 3 because his parents never married. 4 Petitioner next argues that he was legitimated under 5 former Michigan Compiled Laws section 702.83 when Gitelman signed 6 an affidavit in 2000 stating that he is petitioner’s biological 7 father. Section 702.83, which was repealed in 1979, provided 8 that a child born out-of-wedlock could be legitimated “with the 9 identical status, rights and duties of a child born in lawful10 wedlock, effective from its birth” upon either the marriage of11 its parents or if the father and mother filed a written12 acknowledgment of paternity with the probate court. Mich. Comp.13 Laws § 702.83 (1965); see In re Estate of Jones, 207 Mich. App.14 544, 550 (1994).15 Gitelman did not fulfill the requirements of section16 702.83 for two reasons. First, the Gitelman’s affidavit was17 written in 2000, twenty-five years after petitioner’s twenty-18 first birthday. While section 702.83 legitimates a child19 retroactively from birth, the plain language of § 1409(a) clearly20 states that the establishment of paternity by legitimation must21 occur before the child reaches the age of twenty-one. This22 means that the act of legitimation must occur before the23 petitioner reaches twenty-one years of age. See Matter of24 Cortez, 16 I. & N. Dec. 289, 289 (1977). To hold otherwise would25 effectively nullify the twenty-one year period for legitimation26 in § 1409(a). Therefore, under the terms of § 1409(a), Gitelman27 failed to establish petitioner’s legitimation because his28 affidavit of paternity was not signed before petitioner became 20
  21. 21. 1 twenty-one years old. Second, even assuming Gitelman’s affidavit 2 was timely, petitioner was not legitimated under section 702.83 3 because Gitelman did not file his written acknowledgment of 4 paternity with the Michigan probate court in contravention of the 5 statute. 6 Petitioner’s final argument is that Michigan has found 7 arbitrary classifications of illegitimate children to be 8 unconstitutional. See Smith v. Robbins, 91 Mich. App. 284 9 (1979). However, petitioner has no authority that indicates that10 Michigan abolished the concept of legitimacy and has not11 explained why Michigan’s legitimation procedure is an arbitrary12 classification. The only case petitioner cites merely holds that13 the Michigan Paternity Act must be interpreted so as not to14 create a distinction between illegitimate children of unwed15 mothers and illegitimate children of wed mothers. See Smith, 9116 Mich. App. at 291. Without any explanation as to why Michigan17 legitimation law as applied to petitioner at the time was18 unconstitutional, petitioner cannot succeed in claiming that19 Gitelman could have established paternity by legitimation. Even20 if petitioner is correct and Michigan has abolished the concept21 of legitimacy, he cannot identify a statue that legitimated him.22 If there is no possible mechanism for Gitelman’s paternity to be23 established by legitimation, then petitioner cannot acquire24 citizenship under the clear language of § 1409(a). See Flores-25 Torres, 2009 WL 5511156, at *6.26 3. Minnesota27 Petitioner was also a resident of Minnesota from 197128 or 1972 until July 1975. Petitioner argues that he was 21
  22. 22. 1 legitimated under Minnesota law in accordance with former 2 Minnesota Statutes section 517.19 (1976), which provided that 3 children of prohibited marriages were legitimate. In 1954, 4 English law permitted marriage between persons who were not 5 widows or widowers and were between the ages of sixteen and 6 twenty-one only with the consent of the parties’ parents or 7 guardians. Marriage Act, 1949, 12, 13, & 14 Geo. 6, c. 76 §§ 2- 8 3, 78 (Eng.). If consent was not given, the parties could then 9 apply to a court to grant consent for the marriage. Id. § 3. At10 the time of petitioner’s residency in Minnesota, section 517.1911 provided that “[i]llegitmate children shall become legitimated by12 the subsequent marriage of their parents to each other, and the13 issue of marriages declared null in law shall nevertheless be14 legitimate.” Minn. Stat. § 517.19 (1976). The Minnesota15 legislature then amended section 517.19 in 1978, after16 petitioner’s twenty-first birthday, to add that “[c]hildren born17 of a prohibited marriage are legitimate.” Minn. Stat. § 517.1918 (1978). Petitioner argues that he was born of a prohibited19 marriage because Sinclair was seventeen at the time of his birth,20 and thus unable to marry twenty-one year old Gitelman without the21 permission of Sinclair’s parents.22 Under either version of the statute, petitioner has not23 been legitimated under Minnesota law. If the pre-1978 statute24 applies, section 517.19 did not allow for children of prohibited25 marriages to become legitimated. Instead, the statute provided26 that a child could be legitimated only when his or her parents27 married each other or were in a marriage that was nullified.28 Since petitioner’s parents were never married, he was not 22
  23. 23. 1 legitimated under the pre-1978 version of section 517.19. 2 If the post-1978 version of the statute applies, 3 petitioner has not established that he was born of a prohibited 4 marriage. Section 517.03 defines “prohibited marriages” as “a 5 marriage entered into prior to the dissolution of an earlier 6 marriage of one of the parties” and various incestuous marriages. 7 See Minn. Stat. § 517.03 (1978). The section implies that 8 children born into marriages which Minnesota refuses to recognize 9 at law will nonetheless be considered legitimate. Petitioner’s10 parents never entered into a marriage at all, let alone one of11 the types of prohibited marriages prescribed by Minnesota law.12 Sinclair and Gitelman were not completely prohibited from13 marrying. They could have either obtained court consent to14 marry, which neither attempted to do, or married after Sinclair’s15 twenty-first birthday under English law. See Marriage Act, 1949,16 12, 13, & 14 Geo. 6, c. 76 §§ 2-3, 78 (Eng.). Accordingly,17 petitioner has not established that he is a child of a prohibited18 marriage and was not legitimated under Minnesota law.19 4. Massachusetts20 Petitioner could also be legitimated under the law of21 Massachusetts, since it was his father’s domicile. Despite22 Gitelman’s presence in England for military service,23 Massachusetts remained his domicile because “[s]ervice personnel24 are presumed not to acquire a new domicile when they are25 stationed in a place pursuant to orders; they retain the domicile26 they had at the time of entry into the service.” Charles Alan27 Wright, Arthur R. Miller. & Edward H. Cooper, 13 E Federal28 Practice and Procedure § 3617 at 567 (3d ed.). Petitioner argues 23
  24. 24. 1 that he was legitimated under Massachusetts law because the 2 Massachusetts Supreme Court’s holding in Lowell v. Kowlaski, 380 3 Mass. 663 (1980), which held that an acknowledged illegitimate 4 child has the same legal rights of inheritance as a legitimate 5 child, proves that he was legitimated. 6 The scope of the Lowell decision, however, is not as 7 expansive as petitioner argues. Prior to Lowell, a child born 8 out-of-wedlock could only be legitimated by marriage of his or 9 her natural parents together with an acknowledgment of paternity10 by his or her father. Mass. Gen. Laws ch. 190 § 7 (1943). The11 Lowell court determined that an illegitimate child is permitted12 to inherit his or her biological father’s estate if the father13 has acknowledged his paternity to the same extent as he has to14 any of his other children and struck down the previous version of15 Massachusetts General Laws chapter 190 section 7. See Lowell,16 380 Mass. at 670-71. This exception to the general legitimacy17 rule was limited only for the purposes of inheritance. See18 Matter of Oduro, 18 I. & N. Dec. 421, 424 (1983). The amended19 version of chapter 190 section 7 still maintained the previous20 legitimation standard that existed before Lowell, stating: “An21 illegitimate person whose parents have intermarried and whose22 father has acknowledged him as his child or has been adjudged his23 father . . . shall be deemed legitimate and shall be entitled to24 take the name of his parents to the same extent as if born in25 lawful wedlock.” Mass. Gen. Laws ch. 190 § 7 (1980). The26 statute then went on to state that “[i]f a decedent has27 acknowledged paternity of an illegitimate person or if during his28 lifetime or after his death a decedent has been adjudged to be 24
  25. 25. 1 the father of an illegitimate person, that person is heir of his 2 father . . . .” Id. 3 It is therefore clear that Massachusetts carved out an 4 exception that permitted a simple acknowledgment of paternity to 5 be sufficient for inheritance purposes, but not to legitimate a 6 child for all other purposes under Massachusetts law. 7 Accordingly, Lowell does not apply to petitioner’s case, since he 8 is attempting to show legitimation for a purpose other than 9 inheritance. Gitelman did not marry petitioner’s biological10 mother and acknowledge his paternity. Petitioner thus was not11 legitimated under Massachusetts law.12 5. England13 English law is also relevant to petitioner’s14 citizenship claim, since he resided in England from 1954 until15 moving to the United States in 1965. Under English law at the16 time of petitioner’s birth, a child born out-of-wedlock could be17 legitimated through the subsequent marriage of the child’s18 parents, adoption, a special act of Parliament, and in certain19 instances, if the child’s parents were in a voidable marriage.20 See Legitimacy Act, 1926, 16 & 17 Geo. 5, ch. 60 (Eng.);21 Legitimacy Act, 1959, 7 & 8 Eliz. 2, ch. 73 (Eng.). Gitelman22 clearly did not adopt petitioner or marry Sinclair, and23 accordingly he was not legitimated under the English legitimacy24 laws in existence before petitioner was twenty-one years old.25 However, petitioner contends that he was legitimated26 under the English law because the concept of illegitimacy no27 longer exists in England due to the enactment of the Human Rights28 Act, 1998, ch. 42 (Eng.). The Human Rights Act implemented the 25
  26. 26. 1 European Convention on Human Rights (“ECHR”) into English law. 2 Article 14 of the ECHR includes language prohibiting 3 discrimination based on “birth or other status.” Petitioner 4 argues that the Human Rights Act was retroactive in effect and 5 that he was legitimated before the age of twenty-one under 6 English law because the concept of illegitimacy was retroactively 7 abolished. However, “it is now settled, as a general 8 proposition, that the Human Rights Act is not retrospective” in 9 English courts. Re: McKerr, [2004] UKHL 12, 16; see also Wilson10 v. Sec’y of State for Trade & Industry, [2003] UKHL 40 (“to apply11 [the Human Rights Act] in such cases, and thereby change the12 interpretation and effect of existing legislation, might well13 produce an unfair result for one party or the other. The Human14 Rights Act was not intended to have this effect.”); Reginia v.15 Lambert, [2001] UKHL 31. Petitioner therefore was not16 legitimated by Gitelman under English law because the Human17 Rights Act’s changes to legitimacy law were not retrospective and18 enacted well after petitioner’s twenty-first birthday.419 C. Citizenship Through Ted Anderson20 Petitioner also argues that he can obtain citizenship21 through Ted Anderson as his adoptive father because Ted should be22 treated as petitioner’s biological father from the moment of23 adoption. The Supreme Court and Ninth Circuit, however, have24 clearly stated that an adoptive father cannot transmit2526 4 Although petitioner objects to the qualifications of the United States’s expert under Federal Rule of Evidence 702,27 the objection is irrelevant, since the court did not rely upon either expert’s opinion in reaching its decision, but rather28 independently interpreted the laws of England. 26
  27. 27. 1 citizenship “at birth” to his adoptive child as a biological 2 father can under § 1409(a). In Miller, 523 U.S. 420 (1998), a 3 majority of the court indicated that the 1952 version of § 4 1409(a) requires a biological relationship between the out-of- 5 wedlock child and a father to transfer citizenship at birth. 6 Justice Stevens, writing for himself and Chief Justice Rehnquist, 7 noted that, “[a]s originally enacted in 1952, § 1409(a) required 8 simply that ‘the paternity of such child [born out-of-wedlock] is 9 established while such child is under the age of twenty-one years10 by legitimation.’ . . . The section offered no other means of11 proving a biological relationship.” Miller, 523 U.S. at 43512 (citation omitted). Justice Breyer, writing for Justices13 Ginsburg and Souter, similarly stated that “American statutory14 law has consistently recognized the rights of American parents to15 transmit their citizenship to their children.” Id. at 47716 (Breyer, J., dissenting) (citations omitted). Justice Breyer17 further noted that “ever since the Civil War, the transmission of18 American citizenship from parent to child, jus sanguinis, has19 played a role secondary to that of the transmission of a20 citizenship by birthplace, jus soli.” Id. at 478. The Justices’21 understanding of the nature of the transmission of citizenship at22 birth therefore indicates an understanding of the existence of a23 biological relationship between parent and child.24 The Ninth Circuit confirmed this interpretation of §25 1409(a) in Martinez-Madera, where it held that the theory that a26 child “can derive citizenship ‘by birth’ from a subsequent U.S.27 citizen stepfather . . . [is] an untenable and paradoxical28 reading of § 1401’s requirement that one be born in wedlock to a 27
  28. 28. 1 U.S. citizen to derive citizenship from that parent.” Martinez- 2 Madera, 559 F.3d at 942 (citation omitted). The Ninth Circuit 3 reiterated this interpretation in United States v. Marguet- 4 Pillado, 560 F.3d 1078 (9th Cir. 2009), finding that § 1409(a)’s 5 “reference to ‘paternity’ and to the requirement that a person be 6 ‘born . . . of’ a United States citizen” along with the 7 application of the section to children born out-of-wedlock made 8 it “difficult to see how a man could ‘have’ a child ‘out of 9 wedlock’ if he was not that child’s biological father.” Marguet-10 Pillado, 560 F.3d at 1083. While the Ninth Circuit has held that11 a blood relationship is not required when a child is born during12 marriage and at least one parent is a United States citizen, the13 law of the circuit is clear that when a child is born out-of-14 wedlock a biological relationship must exist between a citizen15 parent and the child to transmit citizenship at birth. Compare16 Scales, 232 F.3d at 1166; Solis-Espinoza, 401 F.3d at 1099 with17 Marguet-Pillado, 560 F.3d at 1083; Martinez-Madera, 559 F.3d at18 942.19 Furthermore, the construction of the 1952 version of20 the INA reveals that Congress intended a biological relationship21 exist between an out-of-wedlock child and a United States citizen22 parent to transmit citizenship at birth. If petitioner’s23 interpretation of the statue is correct, there would have been no24 need for the naturalization provision of former § 1434, entitled25 “Children Adopted by United States Citizens,” which allowed a26 child adopted by a United States citizen to naturalize before27 turning eighteen years-old if the adopting citizen complied with28 the section’s requirements. See 8 U.S.C. § 1434 (repealed 1978). 28
  29. 29. 1 While “a title alone is not controlling,” I.N.S. v. St. Cyr, 533 2 U.S. 289, 308 (2001), the separate naturalization provisions for 3 adopted children along with the language of § 1409(a) indicate 4 that Congress intended that a biological relationship exist 5 between a citizen parent and child for a child to be entitled to 6 birthright citizenship. See Marquez-Marquez, 455 F.3d at 557. 7 Congress debated amending the “citizenship at birth” 8 provisions in 2000 to allow foreign born children who were 9 adopted by United States citizens to become citizens10 retroactively at the moment of adoption, as if citizenship was11 transferred to them at birth. However, Congress did not amend12 the provisions because:13 Both the Departments of Justice and State objected to the bill as originally drafted because it confused the14 fundamental distinction between acquisition of citizenship at birth and through naturalization . . . In15 response to the Administration’s concerns, the Committee modified the bill to amend the naturalization provisions16 and grant automatic citizenship, retroactive to the date that the statutory requirements are met.1718 Matter of Rodriguez-Tejedor, 23 I & N Dec. 153, 161-62 (2001).19 Congress continues to recognize a distinction between acquisition20 of citizenship at birth, which requires a biological tie, and21 naturalization, which serves as a mechanism for adopted children22 to acquire citizenship. This serves as a clear signal that23 Congress did not intend for the citizenship at birth provisions24 to apply retroactively to adopted children born out-of-wedlock.25 Under the laws as they existed at the time of26 petitioner’s birth, Ted Anderson could not transmit his27 citizenship to petitioner at birth as if he was his biological28 father. While petitioner could have obtained citizenship through 29
  30. 30. 1 the INA’s naturalization provisions, he chose not to do so. 2 Accordingly, petitioner is not a United States citizen by virtue 3 of his adoption by Ted Anderson. 4 IT IS THEREFORE ORDERED that petitioner’s request for a 5 declaration that he is a United States citizen be, and the same 6 hereby is, DENIED. 7 The Clerk shall forthwith certify the trial record and 8 this order to the United States Court of Appeals for the Ninth 9 Circuit for further proceedings.10 DATED: April 27, 2010111213141516171819202122232425262728 30

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